No. 7021DC60 | N.C. Ct. App. | Feb 4, 1970
The District Court is without authority to consolidate two cases “for the purpose of appeal.” Cases consolidated for trial may be appealed by filing in the Court of Appeals one record. Conley v. Pearce-Young-Angel Co.; Rutherford v. Pearce-Young-Angel Co., 224 N.C. 211" court="N.C." date_filed="1944-04-12" href="https://app.midpage.ai/document/conley-ex-rel-conley-v-pearce-young-angel-co-3674419?utm_source=webapp" opinion_id="3674419">224 N.C. 211, 29 S.E. 2d 740; 1 Strong, N.C. Index 2d, Appeal and Error, § 41. Rule 14, Rules of Practice in the Court of Appeals of North Carolina, provides that upon proper motion two cases may be consolidated for argument before this Court. In the instant case, the appellant has docketed in this Court a single record on appeal attempting to appeal from the entry of orders in two separate cases. The appellant has failed to bring forward his exception to the order entered in the second case extending the time for the defendant to file an amended answer; therefore, we have before us only those assignments of error relating to the order setting aside the “Consent Judgment” in the first case.
The appellant’s first assignment of error is as follows: “May a party who has personally consented to judgment in open court and accepted a benefit provided in said judgment later withdraw such consent and have the judgment set aside for want of consent?” Our Court was faced with this same question in Highway Comm. v. Rowson, 5 N.C. App. 629" court="N.C. Ct. App." date_filed="1969-08-13" href="https://app.midpage.ai/document/state-highway-commission-v-rowson-1214659?utm_source=webapp" opinion_id="1214659">5 N.C. App. 629, 169 S.E. 2d 132 (1969). In that case an agreement was reached between the parties at the 12 November 1968 session of Washington Superior Court with the parties thereto agreeing that the judgment could be prepared and signed out of term, out of the county and out of the district. On 27 January 1969 Judge Cowper signed a “consent order” which contained within it the statement that the defendant refused to sign the judgment. The defendant excepted to the entry of the judgment. Parker, J., speaking for the Court, stated:
“It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records of a*201 court of competent jurisdiction with its sanction and approval. King v. King, 225 N.C. 639, 35 S.E.2d 893" court="N.C." date_filed="1945-11-28" href="https://app.midpage.ai/document/king-v--king-3672157?utm_source=webapp" opinion_id="3672157">35 S.E. 2d 893; Keen v. Parker, 217 N.C. 378" court="N.C." date_filed="1940-04-10" href="https://app.midpage.ai/document/keen-v--parker-3658277?utm_source=webapp" opinion_id="3658277">217 N.C. 378, 3 S.E. 2d 209. ‘Moreover, the power of a court to sign a consent judgment depends upon the unqualified consent of the parties thereto, King v. King, supra, and “the consent of the parties must still subsist at the time the court is called upon to exercise its jurisdiction and sign the consent judgment.” ’ Lee v. Rhodes, 227 N.C. 240" court="N.C." date_filed="1947-03-19" href="https://app.midpage.ai/document/lee-v--rhodes-3671888?utm_source=webapp" opinion_id="3671888">227 N.C. 240, 242, 41 S.E. 2d 747, 748.”
In the instant case, there is nothing in the record to indicate that the defendant or her attorney of record had any knowledge that the “Consent Judgment” had been tendered to and signed by Judge Clifford. There is nothing in the record to indicate that the defendant or her attorney of record was afforded an opportunity to either consent to the judgment or repudiate the agreement allegedly earlier entered into by the parties. The judgment is void on its face for lack of consent. Lee v. Rhodes, 227 N.C. 240" court="N.C." date_filed="1947-03-19" href="https://app.midpage.ai/document/lee-v--rhodes-3671888?utm_source=webapp" opinion_id="3671888">227 N.C. 240, 41 S.E. 2d 747; Highway Comm. v. Rowson, supra.
The appellant contends in his second assignment of error that one district court judge may not set aside the judgment of another district court judge. Upon learning of the entry of the “Consent Judgment”, the defendant made a motion in the cause that the same be set aside. “When a party to an action denies that he gave his consent to the judgment as entered, the proper procedure is by motion in the cause. And when the question is raised, the court, upon motion, will determine the question. The findings of fact made by the trial judge in making such determination, where there is some supporting evidence, are final and binding on this Court. Ledford v. Ledford, supra.” (Emphasis added) Overton v. Overton, 259 N.C. 31, 129 S.E. 2d 593 (1963).
The order of District Judge Alexander dated 6 October 1969 setting aside the “Consent Judgment” of District Judge Clifford dated 15 September 1969 is affirmed.
Affirmed.